Thoughts on politics, law, culture and guns from an eclectic, but mainly center-right point of view

Monday, January 16, 2017

There is None So Blind...

I hate to keep picking on Dahlia Lithwick at Slate, but she keeps writing stupid stuff (but wholly observant of, or rather subservient to, Democrat memes) so I have no choice in the matter.

Let's review actual history. In June 1992, current VP Joe Biden, then a Delaware Senator, said: “It would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over." That's the Biden rule--a supreme court vacancy during the last year of a President's term must be delayed until the election is over. There are sites out there denying this happened but my source is the New York Times.

In November 2013, Harry Reid then Senate Majority Leader, ended filibusters of presidential nominees. It was specifically about blocking President Obama's nomination of a judge to the DC Circuit Court of Appeals; but the parliamentary vote to end filibusters (when Republicans considered this, it was called the Nuclear Option) was 52-48 with every Republican voting against the rule change. This is the Reid rule. I don't think anyone has tried to rewrite history about this. Not yet.

Ms. Lithwick clearly knows this history but her story, here, fails to mentions it, not even once. Not that big a surprise.

She is pushing the semi-delusional meme that the Democrats in the Senate have some ability to block President-Elect Trump's nominees, particularly his replacement of Justice Scalia, who died about a year ago. Here we go.

Last week, after nearly 300 days of Senate obstruction, Judge Merrick Garland’s nomination to the U.S. Supreme Court expired. President-elect Donald Trump says he plans to seat a new justice, who will be avowedly pro-life, by April. He plans to name that person within two weeks of his inauguration. Senate Minority Leader Chuck Schumer recently explained on MSNBC that Democrats in the Senate plan to block any Trump nominee who isn’t in the mainstream. And Senate Majority Leader Mitch McConnell has responded by warning, evidently without irony, that Americans will not tolerate such obstruction.

The obstruction, as she calls it, of course because it's the Republicans who did it, was merely implementing the Biden rule. We'll get to the irony of her position.

There is no rule or tradition that the minority party gets to obstruct the current president's nomination for the Supreme Court in the first days of a new administration. But Ms. Lithwick seems solidly behind just such unprincipled obstruction. You can just about hear her exhortations for Senator Schumer to block any nomination by any means necessary. Especially the yucky nominees.

But the rest of the piece is an abridged interview with an expert in negotiations. I'm not that interested in his answers; they are what you would expect from Slate, but let's look at the questions. She asks:

One of the things you have thought about is the relationship between cooperation and confrontation in negotiations. I think the concern Democrats have raised with me during the transition lies in the tension between those values: President Obama and the Democratic leadership are interested in an orderly transition of power and in good governance. Their opponents seem bent simply on seizing and deploying power. Is Democratic leadership just, well, doing it wrong?

Despite talking a good game of orderly transition of power in the first meeting between the incoming and outgoing presidents, Obama and the Democrats have dug in their heels in an unseemly combination of disbelief and disassociation. There's a little bit of tantrum-pouty poor losers too. They are talking about obstructing the nominations for cabinet posts. They are talking about blocking any Supreme Court nominee they don't approve of (not that the nominee is unqualified to be an appellate judge, just he or she rules the wrong way, according to the Democrats). But this planning means, of course, that the Democrats are planning to do just what Dahlia complains bitterly of when the Republicans employed the Biden rule last year. It's just when the Republicans do what the Democrats did first, the Republicans are only bent on seizing and deploying power, while the Democrats were little angels. Stevie Wonder could see this is hypocrisy of the highest order. The irony is that she doesn't see it at all. She later asks:

So did Schumer disadvantage himself by suggesting that Senate Democrats would, for instance, only obstruct the far-right nominees? That’s a “softer” position than, say, John McCain’s “no Clinton nominees for all four years” posture during the election. How do we recognize when norms of good faith have expired and that collaboration is pointless?

The people on the far right politically are the American Founding Fathers. Not the worst people to associate with (unless you are judging them from the extreme left, as Ms. Lithwick no doubt is). I would think that we have recognized when norms of good faith have expired and that collaboration is pointless. It's when the Democrats make up a new rule that destroys the good will of the Senate and makes it ever more partisan, like with the Biden rule and the Reid rule. That test won't cover all situations, but it is a good rule of thumb.

Should Senate Democrats bargain as though this moment is frozen in time or as if whatever tools they use now will come back to haunt them in future? I am thinking specifically about the use of the filibuster.

Little late to be worrying that Harry Reid's seizing power and upsetting centuries of Senate precedent, (for a few of Obama's nominations) is coming back to haunt the Democrats, now that they are in minority status, don't you think?

But the takeaway here is the hopeful sense on Ms. Lithwick's part that the Democrats can do anything to stop any of the nominations. Short of assassination, there is nothing the Democrats can now do to block them, and you only have yourselves, your Democrat leaders of the past, like Harry Reid and Joe Biden, to thank for this utter inability. Your futile belief that President-Elect Trump won't get all or at least almost all of his nominees approved in very quick order, is about to meet the wall of reality. Karma is one tough cookie.

Delusion for Dahlia and the Democrats, I say.

As Duncan Sheik sang decades ago, I know what you're doing, I see it all too clear.